U.S. v. Hooks, No. 84-2709

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY and SEYMOUR, Circuit Judges, and BALDOCK; McKAY; BALDOCK
Citation780 F.2d 1526
Docket NumberNo. 84-2709
Decision Date02 January 1986
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wallace HOOKS, Defendant-Appellant.

Page 1526

780 F.2d 1526
UNITED STATES of America, Plaintiff-Appellee,
v.
Wallace HOOKS, Defendant-Appellant.
No. 84-2709.
United States Court of Appeals,
Tenth Circuit.
Jan. 2, 1986.

Page 1528

Kenneth C. Watson, Oklahoma City, Okl., for defendant-appellant.

Frank Michael Ringer, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), W.D. of Okl., Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY and SEYMOUR, Circuit Judges, and BALDOCK, District Judge. *

McKAY, Circuit Judge.

Wallace Hooks appeals his conviction of possession with intent to distribute phencyclidine (PCP), a controlled substance. He challenges the sufficiency of the evidence and claims that certain remarks made by the prosecutor during closing arguments constitute plain error. Appellant also contends that the trial court's failure to exclude certain prejudicial testimony on its own motion requires reversal of his conviction.

FACTUAL BACKGROUND

On July 28, 1984, at approximately 9:15 p.m., Officer McLerran of the Oklahoma City Police Department observed a speeding pickup truck that was changing lanes without signaling. Officer McLerran stopped the vehicle, and the sole occupant of the truck--later identified by Officer McLerran as appellant--got out of the truck and walked back to the police car. When Officer McLerran asked appellant for his driver's license, he told the officer that he did not have one. Officer McLerran then advised appellant that he was going to issue him several traffic citations and instructed him to sit in the police car. First, however, Officer McLerran frisked the appellant and, finding a checkbook in his pocket, handed it to his partner. In order to complete the traffic citation, Officer McLerran asked appellant to state his name. Appellant replied that his name was Wallace McConnell. However, Officer McLerran's partner had noticed that the name Wallace Hooks appeared on appellant's

Page 1529

checkbook and asked appellant to explain the discrepancy. At this point, appellant told the officers that he had lied and that his name was, in fact, Wallace Hooks. Officer McLerran then placed appellant under arrest for "interfering with official process by giving false information."

In accordance with the police department's policy of impounding vehicles after the driver has been arrested, Officer McLerran approached the pickup truck to take an inventory of its contents. When he was three to four feet from the door of the truck, he noticed a strong odor coming from the open window on the driver's side, an odor he immediately associated with PCP. Once inside the truck, Officer McLerran noticed that the odor of PCP was stronger. On the front seat of the truck, Officer McLerran observed a bottle containing Everclear grain alcohol, and, on the floorboard, he found a bottle of whiskey. Behind the seat, concealed beneath some clothing, Officer McLerran found a quart jar containing a yellow liquid which he suspected was PCP. Officer McLerran immediately informed appellant that he was under arrest for possession of a controlled substance and advised him of his Miranda rights. Appellant stated that he did not own the truck and that he did not know anything about the quart jar behind the seat. Thereafter, Officer McLerran searched appellant, this time more thoroughly, and found a pocket knife and a plastic bag containing white powder in his pants pocket. Officer McLerran at first suspected that the plastic bag contained heroin but later determined that the white powder was actually bicarbonate of soda.

At trial, Officer McLerran testified about the events leading up to appellant's arrest for possession with intent to distribute a controlled substance. The government also presented the testimony of a Special Agent of the Drug Enforcement Administration, who stated that the quart jar found in the truck contained approximately twenty-two ounces of 81 percent pure PCP. He explained that the PCP had a street value of $10,000 and was at a level of concentration that would require dilution before it could be sold on the street. The agent also testified that PCP is usually sold in liquid form in quantities of one ounce or less and that it is ingested by placing a small amount on the end of a cigarette and then smoking the cigarette. According to the agent's testimony, the odor associated with PCP is "extremely nauseous," and exposure to the odor provokes "gagging." The agent testified that Everclear alcohol is commonly used to dilute pure PCP and that bicarbonate of soda is used to remove impurities from PCP.

Appellant presented six witnesses, several of whom testified that appellant did not own the truck but that he had borrowed it from a friend to move some furniture. According to the testimony, appellant had used the truck all day and returned it to the owner around 5:00 p.m. He then borrowed it again around 8:00 p.m. to move a freezer. One witness testified that he had helped the appellant move the freezer but did not notice any unusual odor while he was in the truck. Appellant's mother testified that the name Wallace McConnell appeared on her son's birth certificate but that she had never known him to use that name. Appellant's common-law wife testified that she had no knowledge of appellant ever having used PCP or any other hallucinogenic drugs. On cross-examination, she testified that the only time she had known appellant to use the name McConnell was for traffic tickets.

SUFFICIENCY OF THE EVIDENCE

In evaluating the sufficiency of the evidence, we must view the evidence--both direct and circumstantial, together with all reasonable inferences to be drawn therefrom--in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982). A criminal conviction may be sustained on wholly circumstantial evidence. E.g., United States v. Downen, 496 F.2d 314, 318 (10th Cir.),

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cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974). Relying upon United States v. Owen, 536 F.2d 340, 344 (10th Cir.1976), appellant argues that his conviction cannot be sustained because the evidence presented by the government was consistent with both innocence and guilt.

In Corbin v. United States, 253 F.2d 646 (10th Cir.1958), we observed that, in circumstantial evidence cases, the standard of reviewing criminal convictions had been modified to require that the appellate court find that the facts and circumstances were "inconsistent with any reasonable hypothesis of innocence." Id. at 649. We rejected this standard of review, however, noting that it was at odds with the Supreme Court's decision in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). In Holland, the Court criticized an instruction in a circumstantial evidence case that the government's evidence must exclude every reasonable hypothesis of innocence:

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

348 U.S. at 140, 75 S.Ct. at 137. Although some courts took the view that Holland only applied to jury instructions, and not to the standard of reviewing criminal convictions, e.g., Cuthbert v. United States, 278 F.2d 220, 224-25 (5th Cir.1960), our decision in Corbin made clear that we viewed Holland as controlling and that we would no longer reverse criminal convictions on the ground that the evidence was consistent with a reasonable hypothesis of innocence. See, e.g., United States v. Turner, 421 F.2d 252, 252 (10th Cir.1970); United States v. Parrott, 434 F.2d 294, 297 (10th Cir.1970), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971); Barton v. United States, 407 F.2d 1155, 1158 (10th Cir.1969); Early v. United States, 394 F.2d 117, 118 (10th Cir.), cert. denied, 393 U.S. 1003, 89 S.Ct. 492, 21 L.Ed.2d 467 (1968).

Notwithstanding our rejection in Corbin of the "reasonable hypothesis of innocence" standard, and its repudiation by the Supreme Court, we have frequently stated in our opinions that a conviction cannot be based upon evidence which is consistent with both innocence and guilt. E.g., United States v. Owen, 536 F.2d 340, 344 (10th Cir.1976); United States v. Ortiz, 445 F.2d 1100, 1103 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); Lewis v. United States, 420 F.2d 1089, 1089-90 (10th Cir.1970); Brumbelow v. United States, 323 F.2d 703, 705 (10th Cir.1963); Tyler v. United States, 323 F.2d 711, 712 (10th Cir.1963). The use of this language is unfortunate for it suggests that a criminal conviction cannot be sustained if a reasonable hypothesis could be designed which is consistent with innocence. Indeed, if there was any validity to this proposition after Corbin, it was flatly rejected by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There, in explaining the standard for weighing the constitutional sufficiency of the evidence, the Court stated:

Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140 [75 S.Ct. 127, 137, 99 L.Ed. 150]. We decline to adopt it today.

443 U.S. at 326, 99 S.Ct. at 2792.

In contrast to the standard of review applied in civil...

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